SPECIAL FEATURE: Nocturnal News
Night work is in the news at the moment. RMT General Secretary Mick Cash is complaining that TfL’s plans to introduce all night services on some Tube lines will wreck the work-life balance of his members – though when interviewed on the BBC’s Today programme he repeatedly side-stepped the observation that none of his members will becompelled to accept night duties.
And the TUC has highlighted information revealed by a recent Labour Force Survey (produced by the Office for National Statistics (“ONS”)) in relation to night work. The ONS research reveals that the number of workers who routinely work nights has increased by 200,000 since 2007 to just under 3.2 million – a rise of 6.9% over a period when the workforce grew by around 4.6%.
Frances O’Grady, General Secretary of the TUC, commented: “….night work is hard and it disrupts family life, so we must show our appreciation for the sacrifices night workers make by ensuring that they have sensible rights and protections”. Surely no-one would disagree with that?
But the ONS research offered the challenging observation that the reported increase in the number of people saying that it is normal for them to work at night does necessarily mean there is more work being done at night – because no account was taken by the research of how much night work was being done by the workers who participated in the survey. If there is a discrepancy between the increase in night work and the amount of work being done, can that be reconciled? Anyway, what is night work? And what is special about night work as far as employment legislation is concerned?
Given that the definition which most people would offer would vary with the seasons, it is helpful (and hardly surprising) that the Working Time Regulations (“WTR”) define “night time”. In the absence of contrary agreement, it is the period between 23:00 and 06:00 – though employers and employees can agree their own definition of night time hours, provided the period in question lasts for at least 7 hours and includes the hours between midnight and 05:00.
Having resolved the definition of “night time”, who is a night worker? That question is also answered by WTR. A night worker as a person who works for at least three hours during “night time”.
Frances O’Grady made the uncontroversial observation that it was appropriate that people who worked at night should have “sensible rights and protections”. In fact, a substantial proportion of WTR is already given over to the protection of people who work at night.
Night work obligations on employers within WTR (some of which overlap with obligations relating to all employees) include:
* taking all reasonable steps to protect workers’ health and safety to ensure that each worker’s average working time (including overtime) does not exceed 48 hours per week. Though the topic of the 48 hours working week is too large to be dealt with here, it is worth issuing a reminder that simply because an employee signs a 48 hours waiver does not mean that an employer can wash his hands of health and safety obligations;
* taking all reasonable steps to ensure that night workers’ normal hours of work do not exceed 8 hours per day on average;
* ensuring that no night worker doing work involving special hazards, or heavy physical or mental strain, works for more than 8 hours in any day;
* ensuring that all night workers have the opportunity of a free health assessment when starting night work – and at regular intervals thereafter;
* transferring a night worker to day work, where possible, if a doctor advises that night work is causing health problems;
* giving workers adequate rest breaks where the pattern of work is such as to put their health and safety at risk (particularly where the work is monotonous);
* allowing workers the following rest periods:
* 11 hours’ uninterrupted rest per day
* 24 hours’ uninterrupted rest per week (or 48 hours per fortnight);
* a break of 20 minutes where the working period is 6 hours or more;
* keeping and maintaining records to demonstrate compliance with the above obligations.
That is quite a substantial number of obligations. Employers of day workers need do little more than offer a 20 minutes break, and make sure that they have their workers’ signatures to 48 hour waivers. Employers of night workers are rather less fortunate.
But what of that observation that the increase in the number of workers working at night is not necessarily reflected in a corresponding increase in the amount of work done? It may be that more research needs to be done, but the answer may well lie in the way in which the definition of “working time” has been applied in recent cases involving night workers.
Broadly speaking a worker is working where they are carrying out their duties, and “at the employer’s disposal”. What of those workers who, for example, are employed to provided nursing or palliative care to the very sick, in their own homes, but who are allowed to sleep when they are not delivering care? After a number of years of uncertainty it is now clear that a worker who, for example, sleeps in a patient’s home, but who is required at all times to remain there, is “at their employer’s disposal”. That is working time, even if the worker is asleep – which has obvious implications for both WTR and national minimum wage.
Most people would probably agree that if you are asleep you are not working. But the fact that time spent asleep may count as working perhaps explains the apparent discrepancy between the reported increase in night work and the absence of evidence of any corresponding increase in the amount of work performed.